Appointments of Enduring Guardian

While the Enduring Power of Attorney allows someone to make decisions as to legal and financial matters on your behalf, the Appointment of Enduring Guardian allows someone to make decisions about you and your personal and health needs, when you are unable to do so.

Some of the main decisions include:

Where you should live

What medical or dental treatments you need

What personal care services you need

We can help you by:

Guiding you as to whether you ought to appoint a Guardian

Ensuring that you, and the Guardian you appoint, understand the effect of the appointment

Advance Health Care Directives

While the Appointment of Enduring Guardian gives clarity as to who can make basic health care and welfare decisions if you are unable to, an Advance Health Care Directive can record your specific wishes as to what medical treatments should be administered or declined. This is commonly referred to as a living Will or a “Do not resuscitate” statement or a “if I’m in a coma and won’t come out of it, turn of the life support” wish.

We can help you by:

Providing a checklist of issues for which you may want to give directions

Ensuring the Advance Health Care Directive you make is effective and binding

FAQs

An Appointment of a Guardian is the appointment of someone to make decisions on your behalf concerning your wellbeing when you are not able to do so. For instance, if, due to the injury or illness, you cannot make decisions as to what medical treatment or care should be provided to you, then the Appointment of a Guardian will enable your Guardian to make those decisions for you.

A Power of Attorney is limited to dealing with matters of a legal or financial nature. So, when it comes to arranging for a person to, say, take up residence in a nursing home, then the Attorney can sign the forms as necessary but the Attorney is not the one authorised to decide which nursing home. That is for the Guardian to determine.

An Appointment of a Guardian is a very important issue and must be considered taking the wishes of the whole of the family into account. It may be that there should be more than one Guardian appointed and that those people should act jointly. It would be difficult to appoint more than three Guardians jointly given that decisions would, from time to time, be needed to be made on an urgent basis and obtaining the consent of all appointed Guardians for the one decision may be difficult.

The Appointment of Guardian is a simple written document which we would prepare for you. The appointment needs to be signed both by you and by the Guardian being appointed. The execution of the document must take place before a lawyer so that the terms of the appointment can be explained and the lawyer signs a certificate which then makes the Appointment of Guardian operative.

The Appointment of Guardian can be revoked at any time by you provided, of course, that you have the mental capacity at the time to make that revocation. The method of revocation is by written instrument.

The Supreme Court and the Guardianship Tribunal also have an overriding power to appoint a Guardian or remove a Guardian. If a Guardian is appointed by the Court or the Tribunal, then any other Appointment of Guardian form is suspended while the Court or Tribunal Order applies.

This is often referred to as a "Living Will". It is a document which states your specific wishes or directions regarding your future health care for various medical conditions. In other words, its relevant to that common statement that people make such as "if I'm in a coma and won't come out of it, switch off the machine, I don't want to be a burden to my family".

These Directives will only come into effect if you are unable to make your own decisions as to your wellbeing.

An Advance Health Care Directive is legally binding in New South Wales. As a competent adult, you have the legal right to accept or refuse any recommended health care. By using an Advance Health Care Directive, if you are not capable of making decisions to accept or refuse any recommended health care, your Guardian can make those decisions for you on your behalf.

That may be exactly right but if you are incapable at the time and your spouse says that you wish any life support removed, how does the doctor know that your spouse is following your wishes? A clear written Directive, properly witnessed, will satisfy that dilemma.

The other point on this is that such a decision might have to be made by your children. They may not really know how you want to be dealt with but, more importantly, they may feel uncomfortable making that end of life decision. Again, clearly drawn written Directives can give them some comfort in knowing what you want and give them confidence in communicating that to your doctor.

The Guardian does not have to make a decision as stated in the Directive. The Guardian has a discretion to give the direction to the doctor or not. This allows some flexibility in case a doctor cannot be absolutely sure that you “will never come out of the coma”.

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